My article on Rucho and the Roberts Court is now up on the Supreme Court Review website (and available without subscription here). Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial … Continue reading
Nicholas Stephanopoulos
This short piece of mine on election law cases involving the pandemic is coming out soon in the University of Chicago Law Review Online. In this brief essay, I consider how courts have deployed the framework of sliding-scale scrutiny in … Continue reading
The following is a guest post from Bill Whitford, professor emeritus at the University of Wisconsin Law School. The United States Supreme Court did not need to reach a definitive decision in the recent lawsuit concerning the rules governing absentee … Continue reading
I just posted this new article, which is forthcoming in the Duke Law Journal. It tackles what I call “quasi campaign finance” — money spent on non-electoral politics that nevertheless relies on an electoral connection to be effective. The abstract … Continue reading
My article with Chris Warshaw on how partisan gerrymandering impedes numerous party functions — candidate recruitment, fundraising, appealing to voters, and so on — is now up on the Legislative Studies Quarterly website. The abstract is below: The relationship between … Continue reading
A very interesting post by Darrell Miller connecting ongoing Second Amendment debates to my forthcoming article, The Anti-Carolene Court. Stephanopoulos, as a voting rights scholar, is most concerned with how judicial action (or inaction) aids partisan entrenchment rather than prevents … Continue reading
Here’s the abstract for a new article of mine arguing that Rucho — along with much of the Court’s other election law jurisprudence — should be understood as the product of the Court’s aversion to Carolene Products-style pro-democratic judicial review. … Continue reading
Earlier today, the North Carolina legislature approved remedial maps to replace the state house and state senate plans that were recently struck down as partisan gerrymanders. PlanScore assessed the remedial maps, and here are the results. For the state house, … Continue reading
Remarkably, yesterday’s decision striking down North Carolina’s state legislative maps as partisan gerrymanders was the eighth straight ruling against gerrymandering by a state or lower federal court. Florida and Pennsylvania state courts preceded yesterday’s decision by a three-judge North Carolina … Continue reading
My latest for Slate (though not the title I would have chosen). I first describe the new gerrymandering techniques we may see after Rucho: Let’s start with the schemes we’re likely to see now that the federal courts have been … Continue reading
Ruth Greenwood in the Fulcrum: Last year the court told us in Whitford that it wanted us to develop further evidence to explain the harms to individual voters of the Wisconsin gerrymander. Consequently, my team has spent the last 12 months hearing … Continue reading
In a nice post about the Court’s Census decision, Rick Pildes noted that Chief Justice Roberts approached the case in a realist fashion, probing beneath the surface to figure out what actually did and would happen. This realism was entirely … Continue reading
Will Baude has an intriguing post suggesting that, even after Rucho, federal partisan gerrymandering claims can still be brought in state court. The rationale is that federal jurisdictional doctrines like standing, mootness, and justiciability don’t apply in state court. So a state court … Continue reading
In its decision last year in Whitford, the Court provided all kinds of clues about what a successful partisan gerrymandering claim would look like. It would be district-specific, not plan-wide. That way it would be congruent with the standing inquiry … Continue reading
I’ll have more to say about the Court’s appalling opinion in Rucho in Rick’s symposium next week. But I want to flag one point now: the Court’s erasure of racial vote dilution doctrine. This is the doctrine that allows groups … Continue reading
After today’s disastrous decision, here are some things that line-drawers could do in the future: Instruct a computer algorithm to generate huge numbers of maps that comply with all nonpartisan criteria and produce as large and durable an advantage as … Continue reading
In his dissent in today’s decision in Gundy v. United States, Justice Gorsuch repeatedly claims that excessive congressional delegation to agencies threatens to undermine congressional accountability. “[B]y directing that legislating be done only by elected representatives in a public process, … Continue reading
Chris Warshaw for Monkey Cage: There are several ways to measure partisan advantage in a districting plan, including the efficiency gap, partisan symmetry, declination and the mean-median difference. These metrics all capture distortions in the vote-seat relationship. In a recent work, Nicholas Stephanopoulos and I averaged … Continue reading
One recurring argument in the ongoing debate over partisan gerrymandering suits is that, if they can be brought, they will inundate the federal courts. Wisconsin advanced this floodgates claim in Whitford, asserting that courts would have to engage in “unprecedented … Continue reading
Today’s decision striking down Ohio’s congressional districts as unconstitutional partisan gerrymanders is notable in several respects. First, it was again unanimous. By my count, this is the fourth consecutive decision (following those in Maryland, Michigan, and North Carolina) in which … Continue reading
Last week, a three-judge district court unanimously held that twenty-seven Michigan state house, state senate, and congressional districts are unconstitutional partisan gerrymanders. The consequences of the decision are important. If it’s upheld, Michigan will have fair district maps in 2020 … Continue reading
My article on unifying disparate impact law has just come out in the Yale Law Journal. Here’s the abstract: The last decade has seen the largest wave of franchise restrictions since the dark days of Jim Crow. In response to … Continue reading
Tonja Jacobi and Matthew Sag for SCOTUS OA: Rucho v. Common Cause and Lamone v. Benisek are the last chance the Court has before the 2020 census to do something about partisan gerrymandering. So, with the future of democracy in the balance, how … Continue reading
More than thirty years ago, Sandy Levinson wrote an article called “Gerrymandering and the Brooding Omnipresence of Proportional Representation.” The article is old but its title was as apt as ever in today’s oral arguments in Rucho and Lamone, in … Continue reading
What will happen in the 2020 redistricting cycle if the Supreme Court follows the advice of the defendants in the Maryland and North Carolina cases and holds that partisan gerrymandering claims are nonjusticiable? Some may think that, in that event, … Continue reading
A nice analysis by FiveThirtyEight using the partisan bias metric and covering North Carolina’s congressional plan (extremely skewed in Republicans’ favor), the court-drawn remedial plan in Pennsylvania (almost perfectly neutral), and all congressional plans currently in effect (exhibiting a significant … Continue reading
A new column of mine in Slate, based on my new paper with Chris Warshaw. In a nutshell, we found that Kagan was right. A party disadvantaged by gerrymandering fails to contest more districts. The candidates it does nominate have weaker credentials. … Continue reading
The following is a guest post from Jon Eguia: In a previous post I introduced a measure of partisan advantage in redistricting. This measure compares the election outcome to a benchmark seat distribution that is not directly influenced by redistricting. More … Continue reading
The following is a guest post from Jon Eguia: I propose a measure of partisan advantage in redistricting. A distinctive feature of this measure is that it captures only the partisan advantage that is due to the redistricting map in … Continue reading
The federal court redrawing portions of Virginia’s House of Delegates map recently announced the new configuration of the district lines. PlanScore evaluated both the old plan and the new one. As you can see below, the improvement is dramatic. The … Continue reading
In yesterday’s post, I described the data and methods that Chris Warshaw and I use in a new paper on the effects of partisan gerrymandering on parties’ associational activities. Today I’ll discuss our findings and their implications. In a nutshell, … Continue reading
In her concurring opinion in Whitford, Justice Kagan suggested that partisan gerrymandering might be unconstitutional not just because it dilutes the votes of a party’s supporters but also because it burdens their associational rights. “Members of the ‘disfavored party’ in … Continue reading
It’s not interesting that Mitch McConnell isn’t a fan of H.R. 1. He was the lead plaintiff against the last major campaign finance reforms that Congress passed. So of course he isn’t going to like H.R. 1’s heightened disclosure requirements, … Continue reading
I mentioned the other day that H.R. 1 would revolutionize American redistricting by requiring congressional maps to be designed by independent commissions. The bill would spark equally radical change in how congressional campaigns are financed, by creating two separate public … Continue reading
H.R. 1—the omnibus electoral reform bill recently unveiled in the House—has received surprisingly little attention on this blog. Sure, it’s not going to be passed by the Senate or signed by President Trump. But it probably is going to be … Continue reading
In the wake of the Supreme Court’s order agreeing to hear the North Carolina partisan gerrymandering case, I wanted to flag some key differences between this suit and last year’s Wisconsin case: Standing: The Court held that the Wisconsin plaintiffs … Continue reading
I wanted to flag this terrific paper by Gregory Warrington on the various quantitative measures of partisan asymmetry that have been proposed in recent years. Warrington calculates each metric over more than 1000 historical elections as well as over a … Continue reading
Here’s a post of mine in the HLR Blog on redistricting legislation that the newly Democratic House could and should pass. I’ll have another post soon on voting rights reform in Congress. Lastly, is it politically realistic for the House to … Continue reading
I see that Justin already beat me to the punch, but I wanted to add some more thoughts about the implications of yesterday’s elections for redistricting: First off, yesterday was the most successful day in U.S. history in terms of … Continue reading
Over the summer, on remand from the Supreme Court, a district court in Virginia struck down eleven House of Delegates districts on racial gerrymandering grounds. The court also gave the Virginia General Assembly until October 30 to pass a remedial … Continue reading
Here’s the abstract for a new paper of mine, forthcoming in a Harvard Law & Policy Review symposium on representation, power, and corruption: Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, … Continue reading
I wanted to flag for the blog’s readers some significant developments that took place this week in the North Carolina and Wisconsin partisan gerrymandering cases. In North Carolina, the trial court agreed to stay the remedial process on the condition … Continue reading
Here is the abstract for a forthcoming article of mine in the Yale Law Journal on vote denial cases brought under Section 2 of the Voting Rights Act: The last decade has seen the largest wave of franchise restrictions since the dark … Continue reading
As Dan mentioned, the League of Women Voters and Common Cause each filed a brief yesterday explaining how Gill v. Whitford affects the North Carolina partisan gerrymandering case. I wanted to flag the litigants’ subtly different (but complementary) ways of establishing standing. The … Continue reading
I mentioned in my post the other day that it shouldn’t be very difficult to satisfy Whitford’s new standing requirements—at least for most plaintiffs in most districts. Cracking and packing are ubiquitous in any district map where significant vote dilution … Continue reading
The Court’s decision today holding that the plaintiffs in Gill v. Whitford have not proven their standing is disappointing. I’ll identify what I think are the weaknesses in the Court’s reasoning in a subsequent post. Here, though, I want to … Continue reading
The following is a guest post from Bill Whitford, a retired law professor at the University of Wisconsin and the lead plaintiff in Gill v. Whitford: Richard Pildes recently suggested that while the Supreme Court may begin subjecting partisan gerrymanders to … Continue reading
An interesting new study by Kevin Baas and Colin McAuliffe: There are several legal and technical challenges to the establishment of a standard for limiting partisan gerrymandering, and a few methods have been proposed thus far. All methods for examining … Continue reading
Reading the tea leaves, Rick Pildes and others have speculated that the Court may decide Whitford on standing grounds. I’ve previously explained why this would be a bad idea. But here I want to make two other points about the … Continue reading
I just posted a new article of mine, “Accountability Claims in Constitutional Law,” that recently came out in the Northwestern University Law Review. The abstract is below. While the piece addresses a range of constitutional doctrines, readers of this blog … Continue reading